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December 2008 Archives

New York State Supreme Court holds DEC's use of "But-For" Test is Contrary to the Brownfields Cleanup Program Statute

The latest installment in the Brownfields Cleanup Program (BCP) eligibility saga involves a recent October 2008 case from the Supreme Court in New York County, East River Realty Company, LLC v. NYSDEC, __ N.Y.S.2d ___, 2008 WL 4694535 (Sup.Ct. New York Cty. 2008), holding that DEC cannot use a "but-for" test when determining whether environmental contamination at a site "complicates" the redevelopment of that site.

Recent Decisions from the New York State Supreme Court on Brownfield Cleanup Program Eligibility- Part II

In following our previous post concerning judicial review of DEC decisions to deny proposed developments entry into the Brownfield Cleanup Program, we discuss the New York County Supreme Court decision of HLP Properties, LLC v. New York State Department of Environmental Conservation, No. 08-115969, __ N.Y.S.2d __, 2008 N.Y. Slip Op. 28337 (N.Y.Sup.Ct. New York Cty. Sept. 12, 2008).

Recent Decisions from the New York State Supreme Court on Brownfield Cleanup Program Eligibility-Part I

As noted in our previous post, in passing the recent Brownfield Cleanup Program Reform Legislation, the legislature did not amend the program's eligibility requirements. As previously discussed, NYSDEC has narrowly construed the Act's eligibility provisions and New York courts have been loath to overrule a NYSDEC decision of non-eligibility. (See our prior post, dated April 26, 2008: "New York Brownfields Law Update: Denial of Eligibility Decisions Mostly Upheld"). 

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